Citation Nr: 0614374
Decision Date: 05/17/06 Archive Date: 05/31/06
DOCKET NO. 04-18 916 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Entitlement to special monthly pension based on the need for
regular aid and attendance of another person or on account of
being housebound.
ATTORNEY FOR THE BOARD
A. J. Turnipseed, Associate Counsel
INTRODUCTION
The veteran had active service from February 1965 to February
1971, from which he was discharged under honorable
conditions. The veteran also had active duty service from
February 1971 to February 1977; however, he was discharged
from this service under dishonorable conditions. Therefore,
entitlement to Department of Veterans Affairs benefits may be
granted only on the basis of his service from February 1965
to February 1971.
This matter comes before the Board of Veterans' Appeals
(Board) from a July 2003 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) above which denied
entitlement to special monthly pension.
The Board notes this matter was initially denied in an April
1999 rating decision. However, the veteran did not submit a
timely substantive appeal to the Board. Based on additional
medical evidence that was submitted in support of the claim,
this matter was readjudicated and denied in the July 2003
rating decision. The veteran filed a notice of disagreement
(NOD) in August 2003, and the RO issued a statement of the
case (SOC) in February 2004. The veteran filed a substantive
appeal (VA Form 9, Appeal to Board of Veterans' Appeals) in
March 2004.
FINDING OF FACT
The competent and probative evidence of record preponderates
against a finding that the veteran is in need of regular aid
and assistance from another person or that he is permanently
confined to his home or its immediate premises.
CONCLUSION OF LAW
The criteria for special monthly pension based on need for
aid and attendance or due to being housebound have not been
met. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 2002); 38 C.F.R.
§§ 3.351, 3.352 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §. See also Conway v.
Principi, 353 F.3d 1359, 1374 (2004), holding that the Court
of Appeals for Veterans Claims must "take due account of the
rule of prejudicial error."5100, 5102, 5103, 5103A, 5107,
5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a),
3.159, and 3.326(a) (2005).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2005).
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; and (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in his or her possession
that pertains to the claim, in accordance with 38 C.F.R.
§ 3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004); see Mayfield v. Nicholson,
19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157
(Fed. Cir. Apr. 5, 2006).
In the Mayfield case, the U.S. Court of Appeals for the
Federal Circuit addressed the meaning of prejudicial error
(38 U.S.C.A. § 7261(b)), what burden each party bears with
regard to the Court's taking due account of the rule of
prejudicial error, and the application of prejudicial error
in the context of the VCAA duty-to-notify (38 U.S.C.A.
§ 5103(a)). Considering the decisions in Pelegrini and
Mayfield, the Board finds that the requirements of the VCAA
have been satisfied in this matter, as discussed below.
In September 2003, the RO sent the veteran a letter informing
him of the types of evidence needed to substantiate his claim
as well as its duty to assist him in substantiating his claim
under the VCAA. In addition, the discussions in the July
2003 rating decision and February 2004 Statement of the Case
(SOC) informed the veteran of the information and evidence
necessary to warrant entitlement to the benefit sought. See
Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). As the
Federal Circuit Court has stated, it is not required "that
VCAA notification must always be contained in a single
communication from the VA." Mayfield, supra, slip op. at 9.
While the September 2003 letter did not explicitly ask the
veteran to provide "any evidence in [his] possession that
pertain[s] to his claim, see 38 C.F.R. § 3.159(b)(1), the
September 2003 letter informed him that additional
information and evidence was needed to support his claim, and
asked him to send the information and evidence to the RO.
Under these circumstances, the Board is satisfied that the
veteran has been adequately informed of the need to submit
relevant evidence in his possession.
Although the veteran was not given complete notification of
the VCAA requirements until after the initial unfavorable AOJ
decision, he has not been prejudiced thereby. He responded
to the RO's communications with additional evidence and
argument, thus curing (or rendering harmless) any previous
omissions. In addition, the Board notes that a substantial
body of evidence was developed with respect to the veteran's
claim, including private medical records and VA examinations.
Likewise, it appears that all obtainable evidence identified
by the veteran relative to his claim has been obtained and
associated with the claims file, and he has not identified
any other pertinent evidence, not already of record, which
would need to be obtained for a fair disposition of this
appeal. It is therefore the Board's conclusion that the
veteran has been provided with every opportunity to submit
evidence and argument in support of his claim, and to respond
to VA notices. For these reasons, any failure in the timing
or language of VCAA notice by the RO constituted harmless
error. Accordingly, we find that VA has satisfied its duty
to assist the veteran in apprising him as to the evidence
needed, and in obtaining evidence pertinent to his claim
under the VCAA. See also Conway v. Principi, 353 F.3d 1359,
1374 (2004), holding that the Court of Appeals for Veterans
Claims must "take due account of the rule of prejudicial
error."
To whatever extent the recent decision of the Court in
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006),
requires more extensive notice in claims for benefits, i.e.,
as to potential downstream issues such as effective date, the
Board finds no prejudice to the veteran in proceeding with
the present decision, since the decision herein denies
entitlement to additional pension. Any questions as to an
appropriate effective date to be assigned are therefore
rendered moot.
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002).
When there is an approximate balance in the evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each issue shall be given to the claimant.
38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2005).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
held that an appellant need only demonstrate that there is an
"approximate balance of positive and negative evidence" in
order to prevail. The Court has also stated, "It is clear
that to deny a claim on its merits, the evidence must
preponderate against the claim." Alemany v. Brown, 9 Vet.
App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54).
II. Analysis
Under 38 U.S.C.A. § 1521(a), "each veteran of a period of
war who meets the service requirements of this section and
who is permanently and totally disabled from non-service-
connected disability not the result of the veteran's willful
misconduct" shall receive VA pension. Section 1521 further
provides for an increased rate of pension, in the form of a
special monthly pension, when an
otherwise eligible veteran is in need of regular aid and
attendance or has a disability rated as permanent and total
and (1) has an additional disability or disabilities ratable
at 60 percent, or (2) is permanently housebound. See 38
U.S.C.A. §§ 1521(d), (e); see also 38 C.F.R. §§ 3.351(b),
(c), and (d).
Under 38 C.F.R. § 3.351(c), a veteran will be considered in
need of regular aid and attendance if he or she: (1) is blind
or so nearly blind as to have corrected visual acuity of
5/200 or less, in both eyes, or concentric contraction of the
visual field to 5 degrees or less; or (2) is a patient in a
nursing home because of mental or physical incapacity; or (3)
establishes a factual need for aid and attendance under
the criteria set forth in 38 C.F.R. § 3.352(a).
Determinations as to the need for aid and attendance must be
based on actual requirements of personal assistance from
others. In making such determinations, consideration is
given to such conditions as: inability of the claimant to
dress and undress himself or to keep himself ordinarily clean
and presentable; frequent need of adjustment of any special
prosthetic or orthopedic appliance; inability of the claimant
to feed himself through loss of coordination of the upper
extremities or through extreme weakness; inability to tend to
the wants of nature; or incapacity, physical or mental, which
requires care and assistance on a regular basis to protect
the claimant from the hazards or dangers incident to his
daily environment. "Bedridden" will be a proper basis for
the determination and is defined as that condition which,
through its essential character, actually requires that the
claimant remain in bed. It is not required that all of the
disabling conditions enumerated above be found to exist
before a favorable rating may be made. The particular
personal functions which the claimant is unable to perform
should be considered in connection with his condition as a
whole. It is only necessary that the evidence establish that
the claimant is so helpless as to need regular aid and
attendance, not that there be a constant need. 38 C.F.R. §
3.352(a).
In addition, determinations that the veteran is so helpless
as to be in need of regular aid and attendance will not be
based solely upon an opinion that the claimant's condition is
such as would require him to be in bed. They must be based
on the actual requirement of personal assistance from others.
See Turco v. Brown, 9 Vet. App. 222, 224 (1996).
Housebound benefits are warranted if, in addition to having a
single permanent disability rated 100 percent disabling under
the VA's Schedule for Rating Disabilities (not including
ratings based upon unemployability under 38 C.F.R. § 4.17 of
this chapter), the veteran: (1) has additional disability or
disabilities independently ratable at 60 percent or more,
separate and distinct from the permanent disability rated as
100 percent disabling and involving different anatomical
segments or bodily systems, or, (2) is "permanently
housebound" by reason of disability or disabilities. This
requirement is met when the veteran is substantially confined
to his or her dwelling and the immediate premises or, if
institutionalized, to the ward or clinical area, and it is
reasonably certain that the disability or disabilities and
resultant confinement will continue throughout his or her
lifetime. 38 C.F.R. § 3.351(d).
The veteran has asserted that he is entitled to special
monthly pension because his mental disorder prohibits him
from taking care of his personal affairs and activities, and
he requires aid and assistance from his daughter. After
carefully reviewing the evidence of record, the Board finds
that the preponderance of the evidence is against the grant
of the veteran's claim.
In August 2001, the veteran was afforded a VA aid and
attendance examination. The examiner noted the veteran came
to the examination by hired van with his wife (who is now
deceased). The examiner also noted the veteran did not
respond to any questions and was uncooperative; therefore, it
appears that his wife responded to the examiner's questions.
The veteran's wife reported that the veteran was mentally
incompetent and that she took care of all his activities of
daily living. She reported that the veteran could not comb
his hair, change his clothes, bathe himself, feed himself,
and that he soiled his pants with urine and stool. On
examination, the veteran's gait was unstable and his
coordination was very poor. The examiner noted the veteran
needed assistance walking, and that he rarely left his home
or immediate premises. The diagnosis was schizophrenia, and
the examiner opined the veteran was totally dependent on
others for his activities of daily living.
The evidentiary record contains medical certificates from
A.L.R., MD, dated August and December 2001, July and
September 2002, and September 2003, which reflect that the
veteran was receiving psychological treatment. Dr. ALR noted
the veteran is confined mainly at home, is never left alone,
and is need of constant supervision, as he may become
threatening to himself and people around him. The September
2002 certificate reflects the veteran was hospitalized for
two days during August 2001 for further evaluation, and
diagnosed with an organic mental disorder.
The veteran was afforded another VA examination in July 2003.
On examination, the veteran's communication skills were
intact, but his thought process was compromised, he was
withdrawn throughout the exam, and his memory was impaired.
The examiner noted the veteran was mentally incompetent to
handle his funds but noted that he was capable of feeding
himself and taking care of himself.
After carefully reviewing the evidence of record, the Board
finds that the preponderance of the evidence is against the
grant of special monthly pension. The objective and
probative evidence of record does not show the veteran needs
the aid and attendance of another person to perform
activities of daily living. In this regard, the Board notes
that the examiner who conducted the July 2003 VA examination
opined that the veteran was capable of performing activities
of daily living, such as feeding and caring for himself. The
Board does note that the August 2001 VA examination report
reflects the veteran is totally dependent on others for
activities of daily living; however, the Board finds this
opinion to be of less probative value because it was largely
based upon information provided by the veteran's wife. In
this context, the Board notes that the August 2001
examination report reflects the veteran was unresponsive and
uncooperative, but there was information provided that the
veteran's wife took care of his needs. On the other hand,
the July 2003 VA opinion was based upon information and
answers elicited directly from the veteran. The Board does
note that the medical certificates from Dr. ALR reflect that
the veteran is in need of constant supervision; however,
Dr. ALR noted that supervision is needed in order to ensure
the veteran does not harm himself or others, not in order to
assist the veteran with activities of daily living.
In addition, the Board finds that the objective evidence of
record does not show the veteran is blind in either eye,
having visual acuity of 5/200 or less or contraction of the
visual field to 5 degrees or less, or that he is a patient in
a nursing home due to mental or physical incapacity.
Likewise, entitlement to special monthly pension is not
warranted on the basis of being housebound, because the
veteran does not have a single permanent disability rated as
100 percent disabling.
Based on the foregoing, the Board finds that entitlement to
special monthly pension has not been established, because the
preponderance of the evidence does not show the veteran
regularly requires the aid or attendance of another person to
complete his activities of daily living or that he is
permanently housebound. In making this determination, the
Board does recognize that the veteran suffers from a serious
mental disorder which causes serious functional limitations;
however, the issue here turns upon whether the veteran's
mental disorder causes such impairment that he requires the
regular aid and attendance of another person or is
permanently confined to his home. The competent and
probative evidence of record does not establish those facts
and, thus, the claim must be denied.
In summary, and based on the foregoing, the Board finds that
the preponderance of the evidence is against the veteran's
claim for special monthly pension based on the need for
regular aid or attendance of another person or on account of
being permanently housebound. There is no reasonable doubt
to be resolved. See Gilbert, supra.
ORDER
Entitlement to special monthly pension on the account of the
need for aid and attendance of another person or on account
of being permanently housebound is denied.
_________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs